in England; then, if no inquiry can be made in this country, both the person and his estate would be in a very unfortunate case, and also the King as to his prerogative. The whole matter must be inquired into before the commissioners and jury, so that no mischief may arise from the absence of the party. If they are satisfied by clear evidence that he is a lunatic, they will find so without inspection; if not satisfied without inspection, they will make no verdict, or return that he is not; and there it must rest, nor can any effect arise from it. Nor is this conclusive; for, if he is beyond sea, and is of sound mind himself, the laying hold of his lands is notice to him that such proceedings are against him, and he may come and appear, or any person opposing the commission on his behalf will be heard; and if insisted upon, and reasonable evidence adduced, he must be then inspected. A commission was accordingly issued into the county where the mansion house and great part of the alleged lunatic's estate lay (x).

The Chancellor, if possible, will prevent a non compos from being carried out of the jurisdiction of the Court, even before a commission has issued (y).

An order to restrain the removal of a supposed lunatic out of England was made upon the petition for a commission, the hearing of which was postponed (≈).

But an order to prevent the removal of a supposed lunatic out of the Lord Chancellor's jurisdiction will not be made, except upon affidavits which satisfy the Court that the party is a fit subject of a commission of lunacy, and that there is reasonable apprehension of such an intended removal.

The supposed lunatic himself has a right to be present at the execution of the commission (a).

(x) Ex parte Southcot, 2 Ves. having been brought before the comsen. 401; S. C. Ambl. 109.

(y) Lady Marr's case, Ambl. 82.
(z) In re Frank, 26 Feb. 1825.
(a) Ex parte Cranmer, 12 Ves.

455.

A lunatic ought not to be brought before the Court of commissioners unJer any artificial excitement. A case mentioned of a supposed lunatic

missioners for a second examination, his conduct at the first having been rational: in the interval he had been permitted to drink a considerable quantity of ale, spirits, and bottled porter, immediately after which he was again produced; when his altered demeanor convinced the jury (ignorant of his potations), that he was a lunatic;

It is said to be a practice by no means uncommon in cases of lunacy, (analogous to a practice very common in civil cases), when the lunatic cannot be removed to the jury, and it is inconvenient for the jury to go to the lunatic, for one or two of the jury to examine the lunatic, and report their observations to the rest (b). But such a practice ought not to be encouraged, except in cases of absolute necessity, as it deprives the party of the benefit of the judgment of the other jurors.

In a recent case, on issuing a commission, it was ordered, that if the commissioners and jury thought fit to examine the supposed lunatic, for the purpose of ascertaining the actual state of his mind, then they, or such of them as thought proper, should visit him (c).

In another case, where the fact of the lunacy of the party was not much disputed, directions were given, with the view of shortening the inquiry and saving expense, that the jury should examine the supposed lunatic previously to entering upon other evidence (d).

In one case, where the commission was executed in London, and the jury thought it necessary to have a view of the supposed lunatic's mansion-house in the country, it was ordered that one of the commissioners should be at liberty to attend such view by the jury (e).

In ordinary cases of the execution of inquests of office, inasmuch as such proceedings are ex parte and not conclusive, notice is not given of the execution of the commission to the party who will be affected by it; but if a sufficient reason for such notice is made out, on application to the Court, an order may be obtained that reasonable notice be given to the party requiring it (ƒ).

and a verdict was found accordingly. One of the commissioners being afterwards accidentally informed of the circumstance, laid the case before the Lord Chancellor, who immediately quashed the commission. 1 Paris & Fonbl. Medical Jurispr. p. 294, n. (a).

(b) Ex parte Smith, 1 Swanst. 6. (c) In re Clement, 30 July, 1831.

(d) In re Green, 2 April, 1831. (e) In re Sir G. O. P. Turner, 13 Dec. 1823.

(ƒ) Rex v. Daly, 1 Ves. sen. 269. It is a subject of surprise, that such a rule as this should still prevail in matters of lunacy, and that a commission should be granted without requiring any notice to be given either to the party to be affected by

If the person against whom a commission of lunacy is sought to be obtained, or any person interested in opposing such a proceeding, or their agents, have entered a caveat at the office of the Secretary of lunatics against the issuing of the commission, notice of the execution of the commission must be given to the party who has entered such caveat. Where a party against whom a commission had been prayed had presented a petition against the issuing of the commission, and stated that he was perfectly competent to govern himself and to manage his affairs; it was ordered that due notice of the time and place of executing the commission should be given to his solicitors, who were to be at liberty to attend the execution of the commission by counsel, if they thought fit, and that they should be allowed their costs in case the party should be found a lunatic (g).

In a case, where a petition was presented by a party, stating that he had been informed, that a commission of lunacy had been issued against him on the application of his two daughters, and that he was in a sound state of mind, and perfectly competent to the management of himself and his affairs, which he was ready to prove by the evidence of persons of respectability, and stating some objections to the commissioners named in the commission on account of their connexion with the solicitor for the commission: the Lord Chancellor, on a number of affidavits being filed, ordered the commission to be resealed, and to be forthwith tried; and that due notice of the time and place of executing the

it, or to some of his relations who are not concerned in the application; and that it is practicable for a comparatively secret tribunal to sit in judgment upon the actions and state of mind of a party, without his having an opportunity of preparing for his own vindication, and defending himself against the imputation of insanity. Notwithstanding the right to traverse, it is submitted, with great deference, that it would be proper to make a general order of Court, requiring reasonable notice in all cases

to be given to the party, or to some of his relations or friends who are not concerned in the application, of the intention to apply for a commission of lunacy against him. Such notice, if the party possessed any reason, would enable him to oppose the application in the first instance, and would be no obstacle against the issuing of a commission in cases of absolute necessity.

(g) In re Sir G. O. P. Turner, 8 Dec. 1823.

commission should be given to the alleged lunatic or his solicitors (h).

Notice of the execution of a commission was ordered to be given to the nephew and heir-at-law of an alleged lunatic, on his presenting a petition in opposition to the commission (i).

Where notice of the execution of a commission had been directed to be given to a party who had an interest in respect of a contract with the supposed lunatic, the Court, on the petition of such party to quash the commission, or for liberty to traverse the inquisition, on the ground that the commission had not been executed at the residence of the lunatic, and that the order as to notice had not been complied with, after much hesitation, refused to quash the inquisition, but granted leave to the petitioner to traverse (j).

The commissioners, under commissions of lunacy, have power to summon witnesses and issue subpoenas, as incident to their office; and if the witnesses refuse to attend, it seems that the Chancellor will make an order for their attendance in the same manner as in cases of bankruptcy (k).

The commissioners are bound, under a penalty of 40%., to suffer witnesses to give evidence openly in their presence (1).

An inquisition may be set aside, on the ground of the sheriff's refusal to hear evidence (m).

It seems that the costs incurred in opposing a commission of lunacy under the sanction of the Court, will be ordered to be paid out of the lunatic's estate. In a recent case, where a solicitor had been employed by a party as his attorney, some time prior to the application for the commission of lunacy, and had been instructed to oppose it; and acting on the evidence of two medical men of considerable eminence and practice, under whose care the party supposed to be a lunatic had been for some time, who deposed that

(h) In re Braithwaite, 21 June, 1826.

(i) In re Bushnell, 9 May, 1821. (j) Ex parte Hall, 7 Ves. 261.

(k) Ex parte Lund, 6 Ves. 784.
(7) 1 Hen. 8, c. 8.
(m) 1 Vez. sen. 270.

the person in question, though of singular and eccentric habits and conversation, was of sound mind, had entered a caveat against the issuing of the commission, which was afterwards granted, with a direction that due notice of the time and place of executing it should be given to the supposed lunatic and his next of kin, who were to be at liberty to attend the execution thereof by their solicitors, or counsel; the consideration of the costs of such appearance was reserved. The solicitor attended the inquiry, which lasted three days, before the commissioners and jury, and employed two counsel for opposing the commission, and the jury found the party to be of unsound mind, and the Master approved of committees, but his report had not been confirmed. The solicitor presented a petition for obtaining an order for the taxation and payment of the costs which had been incurred in the matter; which application was opposed by the committees. The Lord Chancellor referred it to the Master to tax the costs incurred by the petitioner prior to the issuing of the commission, and about its execution, and for instructing and employing counsel; but the consideration of such costs, and of the application for them, was reserved (n).

And in another case, where a solicitor had been appointed to conduct the defence of a person against whom a commission of lunacy was issued, and had expended considerable sums of money for that purpose, and the Master on a reference had taxed the costs; on a petition being presented by the solicitor for payment of such costs out of the lunatic's estate, or by sale or mortgage of a competent part of his real estates, or that a sufficient sum for the purpose might be directed to be set apart out of the annual rents of his estates-The Lord Chancellor referred it to the Master to inquire and certify, whether there were any and what funds or property belonging to the lunatic, out of which the costs could be raised and paid; with liberty for

(n) In re Knight, 20 March, 1832. In this case, the allowance for the maintenance of the lunatic had not

been settled; which is usually done before any order for payment of costs can be obtained.